Joseph Hage Aaronson

Good Cause to Modify Scheduling Order under Rule 16(b)(4) “Primarily Considers the Diligence of the Party Seeking the Amendment” — Absent Diligence, the Inquiry Should End

Hall v. City of Fairfield, 2011 U.S. Dist. LEXIS 146444 (E.D. Cal. Dec. 19, 2011): Defendants move for an order "authoriz[ing] the disclosure of a supplemental expert witness" in this case. (Mot. 2:4-5, ECF No. 68.) Defendants seek in this…

Text Messages — Circumstantial Evidence of Authenticity: Reference to Matters Unlikely to Be Known to Anyone Other Than the Person Claimed to Be the Author

People v. Lehmann, 2014 Cal. App. Unpub. LEXIS 6654 (Cal. Ct. App. Sept. 17, 2014): Text Messages Defendant argues the trial court erred by admitting text messages between him and Emily on the day of the murders because they were…

Sanctions — Dismissal/Default as Proper Penalty for Perjury, But Insufficient When Meritless Case Based only on the Perjury — Referral to Prosecutor, Potential Vexatious Litigant Injunction, Too, for Serial Perjurer

Rivera v. Drake, 2014 U.S. App. LEXIS 17173 (7th Cir. Sept. 3, 2014): Contending that a guard at his prison had sexually assaulted him during a pat-down by inserting a finger in his anus, Natanael Rivera filed this suit under…

Expert Report Is Not “Talisman against Summary Judgment” — Expert Is “Entitled to His Opinion” But Expert’s View of Facts Doesn’t Preclude Summary Judgment (Good Quotes)

Dalberth v. Xerox Corp., 2014 U.S. App. LEXIS 17357 (2d Cir. Sept. 8, 2014): 2. The Interaction Between the Daubert and Summary Judgment Rulings We also address briefly Plaintiffs' assertion that, having qualified Saunders as an expert, summary judgment should …

Does a Non-Party’s Invocation of Fifth Amendment Give Rise to Adverse Inference? — Factors — Trial Court’s Reversal of Position on Issue OK: “Courts Are Free to Change Their Minds” (Good Quote)

Coquina Investments v. TD Bank, N.A., 2014 U.S. App. LEXIS 14388 (11th Cir. July 29, 2014): B. Evidentiary rulings TD Bank argues that the district court made several evidentiary errors that require a new trial. We review a district court's…

Authentication — Failure to Link Party to Russian Facebook Page Requires Exclusion — Assertion of Identity on Page Inadequate — Second Circuit Skeptical That Greater Scrutiny Should Be Applied to Internet Evidence

United States v. Zhyltsou, 2014 U.S. App. LEXIS 18927 (2d Cir. Oct. 3, 2014): Defendant-Appellant Aliaksandr Zhyltsou's criminal trial on a single charge of transfer of a false identification document, [*2] the government offered into evidence a printed copy of …

Circumstantial Authentication of Text [or Email] Evidence — Testimony That Person Said He’d Send Text and Text Was Then Received from His Account is Sufficient — Social Media Authentication by Testimonial Stip

People v. Harris, 2014 Cal. App. Unpub. LEXIS 7086 (Cal. Ct. App. Oct. 1, 2014): D. Failure to Object to Inadequately Authenticated Electronic Evidence 1. Background The prosecution's evidence included the following items derived from electronic messages or material posted…

Authentication of YouTube Videos Posted on Facebook Page by 902(11) Certifications of Records Custodians from Both Companies — Rule of Completeness Admits Otherwise Excluded Statements re Videos Only If Hearsay Rule Satisfied

United States v. Hassan, 742 F.3d 104 (4th Cir. 2014): The appellants in these consolidated proceedings, Mohammad Omar Aly Hassan, Ziyad Yaghi, and Hysen [**2] Sherifi, were tried jointly in the Eastern District of North Carolina and convicted of several…

RICO — Fraudulent Mortgage Assignment and Fraud on Court in Bringing Mortgage Action, Not Underlying Default on Mortgage, Caused Injury in Form of Attorney’s Fees, Sustaining RICO Action

Slorp v. Lerner, Sampson & Rothfuss, 2014 U.S. App. LEXIS 18816 (6th Cir. Sept. 29, 2014): This case relates to alleged misconduct in a separate state-court foreclosure action. The law firm of Lerner, Sampson & Rothfuss (LSR) filed that foreclosure…

Judicial Notice of Internet Evidence — 2014 Search of Whitepages.com ≠ Indisputable Evidence of What a 2008 Search Would’ve Shown

People v. McClellan, 2014 Ill. App. Unpub. LEXIS 2116 (Ill. Ct. App. Sept. 24, 2014): On July 24, 2012, defendant, Eric McClellan, filed a pro se postconviction petition, alleging, in part, his trial counsel and appellate counsel provided him ineffective…

Commercial Litigation and Arbitration

Good Cause to Modify Scheduling Order under Rule 16(b)(4) “Primarily Considers the Diligence of the Party Seeking the Amendment” — Absent Diligence, the Inquiry Should End

Text Messages — Circumstantial Evidence of Authenticity: Reference to Matters Unlikely to Be Known to Anyone Other Than the Person Claimed to Be the Author

Sanctions — Dismissal/Default as Proper Penalty for Perjury, But Insufficient When Meritless Case Based only on the Perjury — Referral to Prosecutor, Potential Vexatious Litigant Injunction, Too, for Serial Perjurer

Expert Report Is Not “Talisman against Summary Judgment” — Expert Is “Entitled to His Opinion” But Expert’s View of Facts Doesn’t Preclude Summary Judgment (Good Quotes)

Does a Non-Party’s Invocation of Fifth Amendment Give Rise to Adverse Inference? — Factors — Trial Court’s Reversal of Position on Issue OK: “Courts Are Free to Change Their Minds” (Good Quote)

Authentication — Failure to Link Party to Russian Facebook Page Requires Exclusion — Assertion of Identity on Page Inadequate — Second Circuit Skeptical That Greater Scrutiny Should Be Applied to Internet Evidence

Circumstantial Authentication of Text [or Email] Evidence — Testimony That Person Said He’d Send Text and Text Was Then Received from His Account is Sufficient — Social Media Authentication by Testimonial Stip

Authentication of YouTube Videos Posted on Facebook Page by 902(11) Certifications of Records Custodians from Both Companies — Rule of Completeness Admits Otherwise Excluded Statements re Videos Only If Hearsay Rule Satisfied

RICO — Fraudulent Mortgage Assignment and Fraud on Court in Bringing Mortgage Action, Not Underlying Default on Mortgage, Caused Injury in Form of Attorney’s Fees, Sustaining RICO Action

Judicial Notice of Internet Evidence — 2014 Search of Whitepages.com ≠ Indisputable Evidence of What a 2008 Search Would’ve Shown

Recent Articles

§ 1927 Sanctions — Must A Lawyer Who Unreasonably and Vexatiously Multiplies Federal Court Proceedings Be Acting “As An Attorney” When Committing the Misconduct To Be Subject to Sanction under § 1927?

Rule 37 Sanctions — Unfamiliarity With Litigation Process Does Not Excuse Intentional Disregard of Court Order — Also Affirming Rule 26(g) Sanctions on Clients and Counsel for False Representations That All Responsive Documents Had Been Produced

Supreme Court: Notice of Appeal Filed After The Original Deadline But Before Reopening by The District Court Is Timely — It Relates Forward to The Date of The Order Making The Appeal Possible — Second Notice of Appeal After Reopening Unnecessary

Rule 37 Default Judgment: Second Circuit’s Four-Factor Test for Imposing Defaults and Three-Factor Test for Lifting Them

RICO: Cover-Up Within Limitations Period of Untimely RICO Violation “Was Merely A Continuation” Of The Original Injury And Could Not Be Used “As A ‘Bootstrap’ To Salvage [The] Time-Barred Claims–Declining to Apply Pinkerton Doctrine to Civil RICO Claims

Inherent Power — Circumstantial Evidence — Fact That Bad Faith May Be Shown by Establishing That Conduct Was So Egregious It Was Necessarily Committed in Bad Faith Does Not Mean That Bad Faith Must Be The Sole Explanation for The Bad Conduct

RICO Causation: Testing Labs’ Misstatements As to Alcohol Tests’ Efficacy Not Communicated to Plaintiffs’ Employers Did Not Cause Plaintiffs’ Professional Harm

Rule 37(d) Sanctions — For Failure to Serve Answers, Objections, Or Written Response to Discovery Requests — Are Not Limited to Intentional Misconduct; Even Innocent Mistakes May Be Covered

Archives

New York Office